Parella, et al. v. Retirement of RI CV-96-434-M 02/27/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gaetano Parella, Mildred Tantimonaco, John Gilgun, Helena McDermott, and Delores Ferry, on behalf of themselves and others similarly situated.
Plaintiffs
v. N.H. Civil No. 96-434-M R.I. Civil No. 95-358
Retirement Board of the Rhode Island Employees' Retirement System, et a l .,
_____ Defendants.
O R D E R
After recovering vested pension benefits which were
unconstitutionally withheld from them (albeit only temporarily)
and securing an award of prejudgment interest, plaintiffs now
move for an award of attorneys' fees pursuant to 42 U.S.C. §
1988. Defendants object.
Factual Background
The factual and procedural history of this case is discussed
at length in the court's order dated March 31, 1997.
Nevertheless, a brief review of the relevant facts and history
might be helpful. In 1994 the State of Rhode Island and the Internal Revenue
Service entered into an agreement aimed at preserving the
gualified trust status of the Employees' Retirement System of the
State of Rhode Island ("ERS"). See generally 26 U.S.C. § 401(a)
(outlining reguirements for maintaining the gualified tax status
of pension plans). Pursuant to that agreement, the Rhode Island
Legislature capped state legislators' annual pensions at $10,000
— the maximum amount tax gualified pension plans were then
permitted to pay under 26 U.S.C. § 415(b). See R.I. Gen. Laws
§§ 36-8-20(e) and 36-10-10.1(e) (the "Act")- The Act became
effective in July 1995.
Plaintiffs are members of a class consisting of retired
Rhode Island legislators and surviving spouses of legislators
who, prior to July 1995, were receiving annual retirement
benefits in excess of $10,000. Seeking to enjoin enforcement of
the Act's $10,000 annual limitation, plaintiffs brought this
action in the United States District Court for the District of
Rhode Island, naming as defendants the Retirement Board of the
Rhode Island Employees' Retirement System (the "Board") and Nancy
Mayer and Joann Flaminio, in their official capacities. See 42
U.S.C. § 1983. Among other things, plaintiffs claimed that the
2 Act deprived them of property without due process of law and just
compensation, in violation of the United States Constitution.
The court denied plaintiffs' request for an order
temporarily restraining defendants from implementing or enforcing
the Act. Following an evidentiary hearing, the court denied
plaintiffs' request for a preliminary injunction, concluding that
plaintiffs had failed to demonstrate that they would suffer
irreparable injury in the absence of a preliminary injunction.
The court noted, however, that plaintiffs were likely to prevail
on the merits. Shortly thereafter, the case was transferred to
this district upon recusal of the judges sitting in the District
of Rhode Island.
In August of 1996 Congress enacted the Small Business Job
Protection Act of 1996 which, among other things, amended § 415
of the Internal Revenue Code, retroactively to December 31, 1994.
The parties agreed that the amendments to § 415 made it possible
for ERS and the Board to reinstate plaintiffs' full vested
retirement benefits and repay all amounts previously withheld,
without risk that such payments might adversely affect ERS's
federal tax status. Accordingly, on September 6, 1996,
plaintiffs filed a motion for interim relief, seeking an order
3 compelling defendants to actually resume paying each class member
the full vested monthly retirement benefit to which he or she was
entitled and to promptly pay retirement benefits withheld during
the pendency of this litigation. Defendants did not oppose the
reguested relief. Approximately two months later, defendants
resumed paying plaintiffs their full vested retirement benefits
and paid all past benefits which had been withheld (totaling
nearly $850, 000) .
Subseguently, plaintiffs moved for an order compelling
defendants to pay them additional compensation, in the form of
prejudgment interest. They argued that such an award was
necessary to fully and adeguately compensate them for the harm
suffered during the period defendants wrongfully withheld that
part of their annual pension benefits exceeding $10,000. The
court agreed, concluding that:
the Act, as applied, unconstitutionally deprived plaintiffs of "property" without just compensation, in violation of the Fifth Amendment. The relevant factors identified by the Supreme Court in Penn Central, supra, support the conclusion that plaintiffs suffered an unconstitutional deprivation of property: the Act, as applied, had a substantial adverse "economic impact" upon plaintiffs; it interfered with plaintiffs' legitimate, distinct investment-backed expectations, Ruckelshaus v. Monsanto, 4 67 U.S. at 1011; and the character of the governmental action, although defying precise definition, is more akin to a "physical invasion" or confiscation of plaintiffs' property.
4 rather than simply a readjustment of economic benefits and burdens (e.g., this is not analogous to the exercise of the state's power to levy taxes nor is it a situation in which the state could reasonably conclude that taking plaintiffs' property was reasonably necessary to promote the health, safety, morals, or general welfare of the public.).
Parella v. Retirement Board of the R.I. Employees' Retirement
System, No. 96-358-M, slip op. at 12 (D.N.H. March 31, 1997).1
The court then concluded that while ERS (acting through the
Board) might be liable as a state actor under 42 U.S.C. § 1983,
it was not entitled to immunity under the Eleventh Amendment.
Id., at 21 ("Having considered all of the relevant factors,
including those identified by the Supreme Court and the Court of
1 Curiously, in a series of footnotes, defendants repeatedly argue that the "taking" issue was a "new issue . . . not [previously] made known to the parties." Defendants' Objection at 10 n.12. See also Defendants' Objection at 4 n.4 ("That issue had not been briefed by the parties . . .."); Defendant's Objection at 9 n.ll ("In fact, the court did not address the issues raised in the parties' summary judgment motions, but rather a new issue the Court raised sua sponte .") .
Defendants seem to imply that they were caught unawares when the court ruled that the Act, as applied, effected an unconstitutional taking. The basis for that claim is, however, a mystery. In light of the allegations contained in plaintiffs' complaint and the legal arguments presented in their motion for summary judgment specifically addressing the "taking" issue, defendants' claims are, at best, ill-supported. See, e.g.. Amended Class Action Complaint for Declaratory and Injunctive Relief at paras. 3, 33-35; Plaintiffs' Memorandum of Law in Support of Motion for Summary Judgment at 31-35.
5 Appeals, the court concludes that ERS is not an alter ego or arm
of the State of Rhode Island. Accordingly, neither ERS nor the
Board is entitled to the protections afforded to the states by
the Eleventh Amendment."). The court then granted plaintiffs'
motion for additional compensation and awarded them in excess of
$31,000 in prejudgment interest.
In light of the court's prior rulings in this matter,
plaintiffs claim that they are "prevailing parties," entitled to
reimbursement for reasonable costs and attorneys' fees expended
in this litigation. See 42 U.S.C. § 1988. Defendants object,
generally asserting that plaintiffs are not properly viewed as
prevailing parties and arguing, in broad terms, that the
reguested fees and costs are somehow disproportionate to
plaintiffs' success on the merits. With one exception, however,
defendants make no effort to identify as excessive or unnecessary
any of the specific services provided by plaintiffs' counsel nor
do they challenge the hourly rates charged by counsel.2
2 Defendants do say that plaintiffs should not recover any costs or fees associated with the preparation and filing of their motion for interim relief which, based upon the court's review of plaintiffs' submissions, appear to comprise substantially less than $3,000 of the total award sought. Although the court denied plaintiffs' motion as moot in light of defendants' reiterated pledge to resume full benefit payments to plaintiffs, the motion for interim relief certainly coaxed defendants to get off the proverbial dime and speed up the process of reimbursing
6 Discussion
I. "Prevailing Party" Status.
In Farrar v. Hobby, 506 U.S. 103 (1992), the Supreme Court
described a "prevailing party," in the context of section 1988,
as follows:
[A] plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.
Id., at 111-12. Accordingly, as the Court noted approximately
three years earlier, the "touchstone of the prevailing party
inguiry must be the material alteration of the legal relationship
of the parties in a manner which Congress sought to promote in
the fees statute." Texas Teachers' Assoc, v. Garland School
Dist., 489 U.S. 782, 792-93 (1989). Success on any significant
issue in the litigation which achieves some of the benefit sought
in bringing the action is sufficient to gualify the recipient of
the benefit as a "prevailing party." Id., at 791-92 (citing
Nadeau v. Helqemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).
plaintiffs (which, even after the filing of plaintiffs' motion, took another two months). The sums sought by plaintiffs in relation to the preparation of that motion are relatively modest. Although the amount could probably be reduced by the court in the exercise of its discretion, a reduction, in any amount, would be neither just nor appropriate. Plaintiffs are, therefore, awarded reimbursement for those sums. 7 Defendants here claim that:
The filing and prosecution of the Complaint did not materially alter the relationship of the parties. Plaintiffs achieved no independent success on the merits. Rather, the fortuity of the Amendment [to the Tax Code] removed the cap on government pension benefits and resulted in payment of benefits in excess of $10,000, beginning with plan years December 31, 1994 .
Defendants' memorandum at 11. Accordingly, defendants assert
that plaintiffs are not prevailing parties and, therefore, no
award of attorneys' fees is justified. The court disagrees.
Contrary to defendants' argument, it was they, rather than
plaintiffs, who substantially benefitted from the "fortuitous"
amendments to the Tax Code. Plaintiffs have always been entitled
to their full pensions. Those amendments likely cut short this
litigation and probably saved defendants substantial legal costs
and fees which would have been incurred mounting an unsuccessful
defense. In any event, plaintiffs undeniably prevailed to the
extent that they: (1) secured a judicial declaration that the
Act, as applied, effected an unconstitutional taking of their
vested pension benefits (thereby entitling them, at a minimum, to
an award of nominal damages for that intrusion alone); and (2)
obtained an award of prejudgment interest on the funds wrongfully
withheld by ERS. Defendants knew (or reasonably should have known) that by
enforcing the provisions of the Act under the prevailing
circumstances, they were unconstitutionally divesting plaintiffs
of vested property rights (i.e., pension benefits) without just
compensation. And, with regard to prejudgment interest,
defendants, as fiduciaries, should have recognized their legal
obligation to compensate plaintiffs for the lost value of the
monies wrongfully withheld. Defendants failed to appreciate (or
deliberately refused to acknowledge) either of the foregoing
facts and forced plaintiffs to seek legal representation and,
ultimately, judicial intervention, to vindicate rights that
defendants should have recognized at the outset. In the end,
plaintiffs plainly prevailed and were made whole. Thus, the
court concludes that plaintiffs gualify as prevailing parties,
and are entitled to an award of reasonable costs and attorneys'
fees under 42 U.S.C. § 1988.
II. "Reasonableness" of the Requested Attorneys' Fees.
Having found that an award of attorneys' fees is justified
under the statute, the court must now determine whether the sum
reguested is "reasonable." In this circuit, the preferred method
of calculating fee awards under 42 U.S.C. § 1988 is the "lodestar
method," by which "the number of hours reasonably expended on the litigation [are] multiplied by a reasonable hourly rate." Coutin
v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir.
1997)(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983));
see also In re Thirteen Appeals Arising Out of San Juan Dupont
Plaza Hotel Fire Litigation, 56 F.3d 295, 305 (1st Cir. 1995).
Plaintiffs are also entitled to an award of reasonable attorneys'
fees incurred in the preparation of the fee application, and
supplemental applications. Brewster v. Dukakis, 3 F.3d 488, 494
(1st Cir. 1993). Of course, whether a request for attorneys'
fees is reasonable depends, in part, upon the degree of success
obtained. Urban v. Jefferson Ctv. School Dist., 89 F.3d 720, 729
(10th Cir. 1996) (citing Hensley v. Eckerhart, 461 U.S. 424, 436
(1983)).
Plaintiffs bear the burden of providing sufficiently
detailed contemporaneous records of the time spent and tasks
performed to allow the court to determine their reasonableness.
See Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632,
634 (1st Cir. 1994). Plaintiffs have met that burden by
submitting comprehensive records detailing the effort expended by
their legal counsel. They have also filed several affidavits in
support of their petition for costs and attorneys' fees.
10 A. Alder Pollock & Sheehan.
At the beginning, plaintiffs were represented primarily by
Attorneys Edward L. Maggiacomo and David Wollin, of Alder Pollock
& Sheehan ("AP&S"). Attorneys Maggiacomo and Wollin did,
however, obtain assistance from other attorneys and a paralegal
at AP&S. Records submitted by AP&S document the following:
a. 13.75 hours of work by Attorney Maggiacomo (a partner, customarily billed at $250 per hour);
b. 84.25 hours of work by Attorney Wollin (an associate, customarily billed at $150 per hour);
c. 3.75 hours of work by Attorney Lundsten (a partner customarily billed at $250 per hour);
d. 2 hours of work by Attorney Rocha (a partner customarily billed at $225 per hour);
e. 13.5 hours of work by Attorney Richman (an associate customarily billed at $90 per hour); and
f. 12 hours of work by J.J. Prete (a paralegal customarily billed at $90 per hour).
Accordingly, AP&S has submitted detailed materials supporting its
reguest for attorneys' fees totaling $19,757.50. In his
affidavit. Attorney Maggiacomo states that the sum reguested has
been voluntarily discounted by $8,448.75, representing the legal
fees generated in the course of preparing to respond to
11 defendants' motion to disqualify AP&S.3 Additionally, AP&S has
submitted documentation supporting its expenditure of $3,829.05
in costs related to this litigation.
Defendants have not challenged the hourly rates charged by
any of the attorneys or the paralegal at AP&S. In the absence of
an objection by defendants, and crediting plaintiffs'
submissions, the court finds that the hourly rates charged by
AP&S for each of the attorneys and the paralegal who worked on
this matter are reasonable and consistent with those customarily
charged by practitioners of comparable skill and experience in
Rhode Island. See Andrade v. Jamestown Housing Authority, 82
F.3d 1179, 1190 (1st Cir. 1996) ("In determining a reasonable
hourly rate, the Supreme Court has recommended that courts use
'the prevailing market rates in the relevant community' as the
starting point."). See also Affidavit of Attorney Maggiacomo at
para. 21; Affidavit of Attorney White at para. 17.
After carefully reviewing the submissions by AP&S, the court
concludes that the fees charged (and, concomitantly, the number
3 In the end, AP&S elected not to challenge defendants' motion to disqualify. Instead, AP&S referred the case to Goldenberg & Muri. That firm assumed representation of plaintiffs, after which AP&S filed a motion to withdraw. 12 of hours worked) by AP&S are reasonable and appropriate in light
of the complexity of this case, the qualifications of counsel,
the volume of work performed by AP&S attorneys and staff, the
ultimate resolution of this matter, and the fact that AP&S does
not seek compensation for any of the work performed in
anticipation of contesting defendants' motion to disqualify. See
generally, Hensley, 461 U.S. at 433-37; In re Thirteen Appeals
Arising Out of San Juan, 5 6 F.3d at 305; Grendel's Den, Inc. v.
Larkin, 749 F.2d 945 (1st Cir. 1984). Accordingly, pursuant to
42 U.S.C. § 1988, plaintiffs are awarded $23,586.55 in costs and
reasonable attorneys' fees expended on their behalf by AP&S at
the outset of this litigation.
B. Goldenberg & Muri.
Plaintiffs have also submitted papers documenting the
substantial amount of time and effort spent on this matter by
attorneys at Goldenberg & Muri ("G&M"). As compensation for
services rendered by G&M, plaintiffs seek an award of $94,687.00
in attorneys' fees and $14,824.95 in costs. Detailed billing
records submitted by G&M document the following:
a. 189.65 hours of work by Attorney Barbara Cohen (customarily billed at $180 per hour);
b. 234.70 hours of work by Attorney Anthony Muri (customarily billed at $200 per hour);
13 c. 131.35 hour of work by Attorney Susan Pepin Fay (customarily billed at $100 per hour); and
d. 4.75 hours of work by Attorney Douglas Emanuel (customarily billed at $100 per hour).
As with the materials submitted by AP&S, defendants have
interposed no objection to the hourly rates charged by G&M. In
the absence of an objection, and crediting plaintiffs'
submissions, the court finds that the respective hourly rates
charged by G&M for attorneys who worked on this matter are both
reasonable and consistent with those customarily charged by
attorneys of comparable skill and experience in Rhode Island.
See Andrade v. Jamestown Housing Authority, 82 F.3d at 1190. See
also Affidavit of Attorney Muri at para. 13; Affidavit of
Attorney White at para. 17.
In connection with their representation of plaintiffs in
this matter, counsel at G&M provided, among other things, the
following legal services:
a. Prepared for and attended the preliminary injunction hearing;
b. Responded to discovery reguests from defendants;
c. Prepared and submitted a motion for class certification and supporting papers;
d. Amended the complaint to add class action allegations and to seek class-wide relief;
14 e. Prepared plaintiffs' motion for summary judgment, supporting memorandum, and accompanying papers;
f. Prepared for and attended the hearing on plaintiffs' motion for summary judgment;
g. Prepared and submitted a supplemental brief in support of plaintiffs' motion for summary judgment, as reguested by the court;
h. Prepared and submitted a response to defendants' supplemental memorandum;
i. Prepared and submitted a motion for interim relief; and
j. Prepared and submitted a motion for additional compensation in the form of prejudgment interest.
In his affidavit. Attorney Muri represents that G&M has
voluntarily reduced the number of hours for which plaintiffs seek
compensation. Among other things, G&M deleted all charges that
it considered redundant, duplicative, excessive, or otherwise not
properly chargeable to plaintiffs. See Affidavit of Attorney
Muri at para. 17-18. Conseguently, although attorneys at G&M
worked on this matter for approximately 1066 hours (totaling
$180,230.00 in legal fees), plaintiffs seek compensation for only
560.45 hours (totaling $94,687.00). Id. In short, G&M has
voluntarily reduced its total bill for services by nearly 50
percent.
After carefully reviewing the documentation submitted by
G&M, the court concludes that the time spent by attorneys at G&M
15 providing legal counsel in this matter was both reasonable and
appropriate. Based upon the comprehensive documentation
submitted by counsel for plaintiffs and in light of the
complexity of the issues raised, the substantial economic risk
assumed by counsel in taking this case, and the ultimate
resolution of this matter, the court is persuaded that the fees
charged by G&M and the time spent and legal services provided
were entirely reasonable and appropriate. See generally,
Hensley, 461 U.S. at 433-37; In re Thirteen Appeals Arising Out
of San Juan, 56 F.3d at 305. Accordingly, pursuant to 42 U.S.C.
§ 1988, plaintiffs are awarded $109,511.95 in costs and
reasonable attorneys' fees charged by Goldenberg & Muri in
connection with this litigation.
III. Defendants' "Motion" for Additional Discovery.
Finally, defendants have reguested "some discovery and an
opportunity to present evidence on the issue of the
reasonableness of the total fees and costs." Defendants'
Objection, at 13 n.15. However, the court does not accept
footnote 15 as a "motion" for some relief. The Local Rules of
the United States District Court for the District of Rhode Island
provide that "the movant in every motion . . . shall serve and
file with the motion a separate memorandum of law containing the
16 authorities and reasoning supporting his position . . Local
Rule 12(a). Defendants have failed to comply with that rule.4
To the extent that defendants seriously wished the court to
consider their reguest for additional discovery related to
plaintiffs' fee reguest, they should have filed an appropriate
motion and supporting memorandum. See, e.g., Petkus v. Chicago
Rawhide Manufacturing Co., 763 F.Supp. 357, 359 (N.D. 111. 1991)
("[S]uch footnote arguments are inappropriate and may be
disregarded. If [defendant] wished to rely on this argument it
should have raised it in the body of its brief.").
Parenthetically, the court notes that the same is true with
regard to the arguments defendants raised in footnotes 4, 11, and
12 of their memorandum (concerning the "taking" issue).
In any event, aside from the basic procedural deficiencies
of defendants' reguest for additional discovery, it also lacks
any real substance. First, defendants have neglected to point
4 Because this case was referred to a judge in this district due to the recusal of the judges sitting in the District of Rhode Island, the local rules of that court apply. See Local Rules of the United States District Court for the District of New Hampshire, Rule 77.5(a) ("The originating court shall retain jurisdiction over the case and enter final judgment. Local rules of the originating court shall govern the case unless otherwise ordered by the judge who is presiding by designation.") . 17 out any legal authority for the proposition that they are
entitled to additional discovery on this issue. More
importantly, as a practical matter, it is wholly unclear why they
should need any additional discovery. The documentation
submitted by plaintiffs in support of their petition for
attorneys' fees is traditional, comprehensive, and thorough.
Short of deposing plaintiffs' counsel simply to inguire whether
the time reported on billing sheets is accurate, it is unclear
what further information defendants might possibly need or want
in order to formulate a clear and cogent response to plaintiffs'
petition for fees. But, even if such information might possibly
exist, defendants have failed to identify it, and this court is
disinclined to indulge defendants' apparent desire to incur yet
even more legal fees.
Having failed to articulate precisely why they might need
additional discovery on this matter, defendants present no
meaningful argument in support of their reguest, and the court is
unwilling to burden plaintiffs further simply because defense
counsel feel disposed to engage in additional litigation.
Defendants' reguest is, therefore, denied.
18 Conclusion
Plaintiffs are "prevailing parties," entitled to an award of
reasonable costs and fees under 42 U.S.C. § 1988. Accordingly,
their motion for an award of attorneys' fees and costs (document
no. 25) is granted. Plaintiffs are awarded, and the Retirement
Board of the Rhode Island Employees' Retirement System shall pay,
the following sums:
a. $19,757.50 in reasonable attorneys' fees expended by AP&S in connection with this matter;
b. $3,829.05 in costs reasonably incurred by AP&S in connection with this matter;
c. $94,687.00 in reasonable attorneys' fees expended by G&M in connection with this matter; and
d. $14,824.95 in costs reasonably incurred by G&M in connection with this matter.
In light of the foregoing, defendant Nancy Mayer's Objection and
Motion to Clarify (document no. 31) is denied as moot.
19 SO ORDERED.
Steven J. McAuliffe United States District Judge
February 27, 1998
cc: Barbara S. Cohen, Esq., Michael P. DeFanti, Esq. Rebecca Tedford Partington, Esq. Clerk, U.S. District Court, RI